Tag: criminal defense attorney

Basketball Player Gets into Trouble in the Offseason

Posted by John Devendorf on July 16, 2015

Like everyone else, a basketball player is not immune to state and federal laws. Especially when it comes to driving under the influence.

Fans and players alike are anxiously waiting for the 2016 season to start up in October. While they wait, they typical basketball player is relaxing with their families or getting into shape. Unfortunately, other players find themselves on the wrong side of law enforcement .

Basketball Player Caught Drinking and Driving

Ty Lawson, of the Denver Nuggets, was with his girlfriend Ashley King at the Jardin nightclub in Hollywood this week. TMZ, the celebrity news website that first reported the arrest, encountered Lawson outside the club. When they saw him, it was shortly before he got into his Mercedes-Benz and hit the road. For Lawson, he was unaware he was about to run into some complications on his ride home.

At about 1:30 in the morning, a California Highway Patrol (CHP) officer noticed a white Mercedes driving on the 101 freeway at a high rate of speed. The officer pulled the car over, and the driver identified himself as a professional basketball player for the Denver Nuggets. However, Lawson was not just speeding. CHP officer Kevin Tao told the Denver Post that Lawson also “displayed several signs of symptoms of alcohol intoxication.”

Lawson reportedly failed field sobriety tests administered by the CHP officers, and based on that and displayed symptoms of alcohol intoxication, he was arrested and booked into a Los Angeles Police Department jail.

Repercussions of a DUI

At last report, Lawson was still in jail in lieu of $5,000 bail. However, the bail amount shouldn’t be much of an issue for the point guard. He is currently under a 4 year, $48 million contract with the Denver Nuggets. He was even carrying $6,000 in cash at the time of his arrest.

California hasn’t been too welcoming to Lawson. Before his Los Angeles DUI, the Golden State Warriors eliminated the Denver Nuggets in the first round of playoffs, despite Lawson leading Denver in both scoring and assists.

This is not Ty Lawson’s first run-in with the law. Only six months ago, Lawson was arrested for driving under the influence in Denver. The police pulled him over for driving 61 mph in a 35 mph zone. The arresting officer reported slurred speech, bloodshot eyes, swaying, and stumbling. Additionally, he notes an odor of alcohol on his breath. Lawson refused a chemical breath test, and the police took him into custody.

Charges to Settle

The Denver DUI charges are not yet resolved, as he is due in court on that charge later this week. The conditions of his bond on that arrest include no consumption of alcohol and monitored sobriety. This latest DUI arrest will probably not do much to help his case before the Colorado judge and prosecutors.

During Lawson’s college basketball days at the University of North Carolina in 2008, he plead guilty to underage driving after consuming alcohol. His blood alcohol concentration (BAC) estimation was only 0.03%, but that level was still a violation because he was under the legal age to drink.

The David Kavinoky Law Firm staffs the best attorneys in Los Angeles. Should you find yourself on in need of legal defense, give us a call right away. I you need the best DUI lawyer you can find, then 1.800.NO.CUFFS is the number you want to know and hope you never need. Call us anytime, 24/7, 365 days a week

Navigating Boating Under the Influence Laws

Posted by Darren Kavinoky on June 16, 2015

Boating under the influence laws are strictly enforced, and are especially pertinent the summer months.

Summer pretty much translates to water time. Whether it’s a boat ride around the lake, hanging at the beach or water skiing, usually summer conjures up the images of beautiful views, the sounds of splashing of water, and the smell of sunscreen.

Boating and Drinking Don’t Mix

What you normally don’t think of, as part of this picture, is the sounds of handcuffs, the smell of a jail cell, or the visual of red and blue lights rolling up behind you. Sorry to ruin the picture, but I gotta warn you. Its not all fun in the sun out their on the waters.

Law enforcement has made it a new priority to enforce boating under the influence with the same fervor and crack down as they have driving under the influence. That’s right, the same tough DUI enforcement that takes place on the roads will now hit the water. Welcome to Operation Dry Water.

Operation Dry Water

Operation Dry Water launched in 2009 by the National Association of State Boating Law Administrators with the U. S. Coast Guard, with the goal to bring awareness and education to recreational boaters about the dangers of alcohol and drug use while out on the water. According to the U.S. Coast Guard, alcohol is the primary contributing factor in recreational boating fatalities.

While not mandated, law enforcement agencies have chosen to participate in Operation Dry Water, lending credibility to the concern that Boating Under the Influence (BUI) is a real problem. Here in Los Angeles, the Sheriffs Department at Castaic/Pyramid Lakes and Marina del Rey; the Los Angeles Port Police; and U.S. Coast Guard are participating in the program. June 26 to 28, 2015 has been designated as the Operation Dry Water heightened enforcement weekend. But know law enforcement says outreach and awareness of BUI is year-round and added enforcement will include holiday weekends. So think of all the attention that normally accompanies DUI checkpoints on the road, that same idea has rolled out on water.

Boating Under the Influence Laws

Just so we are all clear: it is illegal to Boat Under the Influence. The California Harbors and Navigation Code is the law on the water. It is not as stringent as the law on the land and often people get confused. The one break you get on water that you don’t get on land is that open containers are fair game. But make no mistake about it, operating a boat under the influence is just as illegal as driving a vehicle under the influence of drugs or alcohol.

The law recognizes that boating under the influence can be just as and even many times more dangerous than driving under the influence of drugs or alcohol. People drive every day and are well practiced at it. When it comes to boating however, many people might drive a boat a couple times a year. Such a person is far from an expert boat driver. For that same person to be drunk and boating is extremely dangerous.

Roads vs. Water

Another important distinction between driving and boating is that driving takes place most commonly on roads that are fairly wide and stable. Boating often takes place out in the ocean where the tides and winds can change in an instant. If a person is under the influence, they will not be fast enough to respond properly to the changing circumstances. In fact, statistics from the United States Coast Guard show that in boating deaths involving alcohol use, over half the victims capsized their own boats and/or fell overboard.

Furthermore, boats, by their very nature, are inferior to cars in their ability to steer and to brake. Given that the typical boat operator spends only a few days a year on the water, they are typically not expert at handling the different problems that boaters encounter from time to time. When the hot sun and alcohol have had their say, an impaired person at the helm of a boat may be in bad shape and will be putting everyone aboard and nearby in danger.

Rules & Regulations

Under the Harbors and Navigation Code there are several laws that regulate boating and drinking. The boating under the influence laws are very similar to the driving and drinking laws. Harbors and Navigation Code 655b states that you may not operate a

boat,
water skis,
an aquaplane, or
any similar equipment (such as a jet ski),

while under the influence of alcohol and/or drugs.

Being under the influence is defined as having a blood alcohol content (BAC) of .08 percent for a recreational vessel and .04 percent for a commercial craft. The statute sets a zero-tolerance policy for watercraft such as aquaplanes and water skis and for boaters under the age of 21. The zero-tolerance policy means that any trace of alcohol is illegal when operating these types of watercraft.

BUI Penalties

DUI and BUI cases are similar in prosecution. Additionally, while the penalties vary, it is only a slight variation. Under the BUI laws, you can still face fines, possible jail time and alcohol education classes. The one distinction is in the length of time priors can be used to enhance your sentence. Instead of the priorability time being ten years, as in DUI cases, priors only enhance a BUI when the DUI or BUI was committed within the last seven years prior to the offense.

Also, unlike a DUI conviction, the California DMV will not revoke or suspend your driver’s license following a BUI conviction.

Fighting a BUI

It is ‘per se’ under the influence if you are operating a watercraft in California and your blood-alcohol content is above a .08%. Keep in mind, you can still receive a BUI dependent on the officer in charge. An officer’s determination that you are “under the influence” is very important. This is true even if your actual blood alcohol content is lower than that percentage.

Let’s assume the scenario above when an officer comes on board for that safety check, the next thing you know he smells alcohol on your breath, decides to do field sobriety tests, and boom next thing you know he determines that you impaired and unable to operate the boat. You may be at risk for arrest based on California’s boating under the influence laws.

Defensible Cases

These cases can be defensible. Unlike driving patterns, boating behavior (i.e. straggling lanes, speeding, are harder to quantify and qualify, thus giving the boater more margin of error on a boat than in a car. And what about those objective signs? If someone has a red face and crazy hair, driving a vehicle, it’s easy to apply assumptions. This person is drunk! However, that same argument is easily explainable for the person who has been in the sun and wind all day. Isn’t everyone unkempt on a boat? Unsteady gait? Of course! You have been walking on water all day!

There are many confusing variables involved in this type of case. Even a seasoned law enforcement officer may mistake light drinking for violation of boating under the influence laws (BUI). Your case may have some of these conditions, or any of the many others that lead to unwarranted BUI arrests. You could find yourself in a position of too much fun in the sun or wrongfully facing BUI charges. If so, you should consult with a crime attorney. A qualified DUI attorney can use the particulars of California boating under the influence laws to help you.

Summer is a great time to get outside and enjoy all that we love about Southern California. Pack your sunscreen, wear a hat, and choose a designated boater.

What is going on in the OC?

Posted by Robin Sax on June 15, 2015

New Questions about Justice in the Orange County Courts May Impact You.

By Robin Sax

There is bad news for Orange County Defendants. If you had a case in Orange County, you’re at risk of errors, omissions, and/or fabrications on your record.

There is even worse news for Orange County Defendants, too. Your court records may be in jeopardy. It is possible your records received inaccurate documentation.

There is good news for Orange County Defendants. The top criminal defense lawyers in Los Angeles at The Kavinoky Law Firm have a plan. We are ready to help you correct history.

Orange County Court System

The Orange County court system, as a whole, is currently under fire. For the last few weeks, newspapers and journalists alike are salivating at the opportunity to dig up even more dirt. The newest revelation reported by The Los Angeles Times is called; “Probe Underway Into Possible Tampering in Orange County Superior Court.” This report states Judge Thomas Borris ordered defendants and defense attorneys into court. His goal?

To get to the bottom of what appears to be blatant lies and factual errors in court records.

Grievous Errors on Court Records

Honestly, there is a wide variety of errors and/or blatant lies.

Some records show that the attorney of record listed in the court file is not really the attorney of record. Still others note that a jail sentence is complete when, in fact, there was no penalty jail time at all. Additionally, gross misstatements about what true occurrences in a criminal case.

What does this mean? It means that your past may be recorded incorrectly. Which in turn, could wreak havoc on your future.

This isn’t the first time that Orange County’s legal blemishes have made headlines. Just a couple of weeks ago, an Orange County Court saw a judge take a stand when ordering disqualification of the entire Orange County District Attorney’s Office in a high profile capital murder case (read: 250 prosecutors NOT allowed to prosecute their own case). In a breath of fresh air decision, the court found that there was the shady and unconstitutional practice by the Sheriff’s Department (through coordination with the DA’s office) using jailhouse informants to elicit confessions from other defendants.

Who is to Blame?

It is unclear who is responsible for these inaccurate (or false) entries. Even so, perhaps a more important query is the question of “why?”

While the Judge Borris is trying to gleam these answers, defense attorneys must ask “how does this affect our clients?” Of course, those that have court case histories wonder “How does this impact me?” The answer is huge. It could affect everything about your record going forward.

The Orange County court system relies on prior convictions. In addition, it relies on court records each and every day to paint a picture. Court records make rap sheets, provide critical records to the DMV, the Department of Corrections, and inform prosecutors of how to charge a new case. For example, in a Driving Under the Influence Case, whether someone has suffered a prior DUI will effect their driver’s license, jail sentence, and DA’s perspective of a case.

Priors effect not only the perception of a defendant in general but also provide for mandatory increases in other offenses. For example, petty theft, domestic violence, stalking, violations of restraining orders have specific requirements for subsequent effects. If someone’s record reflects completed jail time (when it isn’t), they could be looking at more time! Consequently, we typically see the DA wanting to increase the punishment to teach a lesson to the offender.

As a result, in order to address the issues of accuracy, The Kavinoky Law Firm created a system. This new system ensures our client’s records are accurate and corrects them if need be. If you would like the peace of mind to know that your case is correct and your record reflects what really occurred, call us. 1.800.NO.CUFFS.

What You Need to Know about DUI Crackdowns

Posted by Darren Kavinoky on May 22, 2015

DUI checkpoints may impact your drive home. Be sure you don’t drink and drive!

Summer and DUI Enforcement

We are approaching summer and with the change in seasons to warmer weather, local law enforcement steps up DUI enforcement. This is especially true with checkpoints across Southern California.

Overall, the various local and state law enforcement agencies make more than 100,000 DUI arrests each year. These occur in the five Southern California counties of Los Angeles, Orange County, San Diego, Riverside, and San Bernardino.

In 2014, law enforcement arrested 499 drivers for DUI in Los Angeles County over the Memorial Day weekend. The good news is that’s 30 fewer arrests than 2013.

One hundred Los Angeles County law enforcement agencies joined together last year. They took part in a DUI enforcement program during the three big summer holidays. The three are Memorial Day, Independence Day, and Labor Day. The program is the “Avoid the 100” campaign. The program includes sobriety checkpoints and increased roving DUI patrols to deter and catch drunk drivers.

Police love sobriety checkpoints.

Surprisingly, good defense lawyers love them too (more on that below). From the law enforcement side, checkpoints are an effective way to prevent accidents and make arrests. However, years of experience demonstrate that checkpoints are also thorny problems for police and prosecutors. Oftentimes these checkpoints create an environment for illegal searches and arrests.

The courts ruled that sobriety checkpoints don’t violate a motorist’s Fourth Amendment rights if they are conducted within certain criteria. Really though, it’s surprising how often these criteria fall to the wayside.

What should you do if you end up at a sobriety checkpoint?

The first thing you should do in this situation is open your window slightly and wait for the law enforcement agent to ask you any questions. As with any routine stop, you are required to provide identifying information such as your name, address, driver’s license and registration. As a general rule, it’s good to have these things organized in advance.

Should you be asked any further questions, you can politely decline to answer. You can say something like, “Officer, I don’t really approve of roadblocks and I do not care to discuss anything further.” If the officer persists in asking questions, you can ask for the return of your license and ask if you are free to leave.
It is imperative not to answer any questions beyond “name, rank and serial number” even if they appear harmless. Questions such about where you started driving, where you are headed, your eating and drinking patterns, when you last slept and how long, and a slew of other questions are all designed to gather incriminating evidence or eliminate possible defenses your lawyer could offer.

A recent U.S. Supreme Court case, Rodriguez vs. U.S., established that a prolonged detention – one that is extended past the reason for the initial stop – is illegal, and the evidence that is gathered afterwards can be suppressed. This can be vitally important at a sobriety checkpoint; unnecessary conversation between you and law enforcement can only serve to extend the encounter unnecessarily and possibly harm your legal interests. Remember, your right to remain silent ONLY helps you if you choose to exercise it! I can’t tell you the number of people I’ve met who, in trying to talk their way out of trouble, only talked themselves into more trouble.

What are officers are looking for at DUI checkpoints?

Officers are looking for impaired drivers. To do this they will use several different methods including, asking the driver questions, and observing the driver’s behavior. These signs include:
• Contradictory answers to questions
• Smell of alcohol or illegal substances
• Slurred speech
• Open bottles of alcohol in the vehicle
• Bloodshot or red-rimmed eyes
• Admission of drug or alcohol use.

Many agencies use a portable breath test to determine the drivers’ blood alcohol content (BAC) levels. This is called a Preliminary Alcohol Screening Test (PAS). Even though it is a chemical test, it is legally considered to be a Field Sobriety Test. If you are over 21 and are not on probation for a previous DUI, this test is optional. In fact, before the officer administers a PAS test, they must read an admonition to you stating that the test is not mandatory. Because the technology shortcomings of the PAS machine make is susceptible to giving readings that are inaccurate and overly state true alcohol levels, if you’ve had any alcohol at all, especially recent consumption of alcohol, it is best NOT to take this test.

What Does an Experienced DUI Attorney Look for in DUI Checkpoints?

When conducting sobriety checkpoints, police must follow strict guidelines outlined by the U.S. Supreme Court in the landmark case Ingersoll vs. Palmer. If police do not follow the criteria from Ingersoll, the DUI roadblock isn’t lawful. Additionally, any evidence gathered during a drunk driving arrest is possibly not admissible in court.

At The Kavinoky Law Firm, our top attorneys analyze all aspects of a checkpoint. They work tirelessly to determine whether there were discrepancies between the protocol set by the courts and the operation of the checkpoint. If police do not follow all of the necessary guidelines, and there was no probable cause for a stop, we will move to have all of the evidence that from the arrest set aside.

We have very positive results doing this for our clients; it’s shocking how many sobriety checkpoints do not comply with the legal safeguards.

One of the main reasons why a good defense lawyer is optimistic about a checkpoint case is that there is a strong case for defense. These cases do not provide one of the key aspects of the case that they usually point to in trying to secure a conviction. This is, a bad driving pattern. There is no driving pattern for someone who pulls into a checkpoint. Consequently, that is something that your lawyer can use to help you win your case.

The summer holidays are a great time to get outside and enjoy all that we love about Southern California. Let’s make sure we do it in a safe and sober way.

The Kavinoky Law Firm

About Darren Kavinoky and The Kavinoky Law Firm.

Darren Kavinoky receives recognition over and over for his commitment to clients and for being a top California defense lawyer. The Los Angeles Magazine repeatedly regards him as a Super Lawyer , and the American Trial Lawyers Association highlighted him as one of the Top 100 Trial Lawyers in California. Additionally, he is the legal analyst and special correspondent for the syndicated television program The Insider, and is a sought-after guest on shows that include Entertainment Tonight, Dr. Phil, NBC’s Today Show, and various programs on CNN and the Headline News Channel. Follow Darren on Twitter @DarrenKavinoky or www.DarrenKavinoky.com.

The Kavinoky Law Firm is a criminal defense firm with offices throughout California. The firm’s mission is to deliver peace of mind to every client. Our top criminal defense lawyers work to find the best possible resolution to your legal problem. Regardless of whether you have a charge of DUI, drugs, theft, domestic violence, assault, murder, or any other offense. For more on The Kavinoky Law Firm, visit www.NoCuffs.com or call 1.800.NoCuffs.

Cycling Under the Influence

Posted by Darren Kavinoky on May 4, 2015

Cycling Under the Influence (CUI) – California Criminal Law

Drunk & Bicycling

Riding a bicycle under the influence of alcohol or drugs is a crime in California. A person convicted for cycling under the influence will face a fine of $250. The fine is not much in comparison to the fine in a drunk driving case. Yet, with that said, this amount can be substantial to some people.

There is no reason not to fight the charge or the fine. In fact, there are several issues that make CUI cases weak. An experienced DUI / DWI lawyer can successfully challenge a cycling under the influence case based on these issues.

There are several elements that a prosecutor must prove in order to convict someone of drunk driving. A primary element is that the person was driving a vehicle while under the influence of alcohol. Bicycles are not technically “vehicles” under California law. Therefore, cycling under the influence is not under the same California Vehicle Code laws that address driving vehicles while intoxicated. Instead, the California Vehicle Code has a separate provision that states that it is unlawful to ride a bicycle on a highway while intoxicated. Highway refers to most public streets. However, there are other places where one may receive a CUI. There are places such as bike trails and parks.

Cycling Field Sobriety Test

In the course of a CUI investigation, a police officer may ask the cyclist to complete a field sobriety test. The police use the field sobriety test for people they stop while driving. The test tells police whether a driver is operating a car under the influence of alcohol.

According to the majority of California criminal defense attorneys, the field sobriety tests tend to lean in favor of the police. That is to mean, it is easier to fail a test than it is to pass. Most often, the police officer will have made up his or her mind that they are going to make an arrest, yet they will go on and do more field sobriety tests simply to try to gather additional evidence against the person under investigation. Furthermore, it is important to understand that field sobriety tests are not mandatory. An individual can choose not to do the tests.

Cycling Similar to Driving

For people riding bicycles along public highways, the Implied Consent Law applies to them just as it applies to drivers arrested for drunk driving. This law requires that once a person has been arrested for driving or cycling while intoxicated, that they submit to a chemical test. Refusal to submit to a chemical test can carry additional penalties and consequences. In cases of driving under the influence of alcohol, the legal limit for driving a vehicle is .08 percent of an individual’s blood alcohol content. There is no similar rule for cyclists. Whether a person was too impaired to ride a bicycle along a highway must be proven with circumstantial evidence.

There are several ways to attack a CUI charge. One of these is to challenge whether the cyclist was in fact riding on a “highway.” Although the definition of highway includes public streets, it excludes driveways and private roads. It also excludes many recreation areas where bikers may be, such as mountain bike trails or boardwalks by the beach. Another way to attack the charges is by way of attacking the results of the chemical tests.

Challenge Your Charges with a Lawyer’s Support

Just like cases involving driving a vehicle under the influence of alcohol, a charge for cycling under the influence is not a hole-in-one. A criminal defense lawyer with experience fighting CUI cases can aggressively fight the charges. This lawyer will keep negative consequences to a minimum.

Don’t fight your case alone. Contact an experienced DUI attorney to fight for you. The Kavinoky Law Firm employs only the best. Call 1.800.No.Cuffs 24/7, 365 days a year. We don’t sleep – so you can.

What Happens After I am Arrested?

Posted by Darren Kavinoky on April 4, 2015

After an arrest, things move quickly. This can be daunting for many people, especially to the those new to the legal process

So let’s break it down here to make it a little less intimidating.

After an Arrest

The first thing that happens is the booking process.The booking process happens before you can get out of jail and consequently before you can go home. During this time, the police take photos and fingerprints.
The fingerprints then go to Sacramento for the background check. Once the background check is complete, then the case may move forward. Understandably, law enforcement does not want to release people who may have a murder warrant.
At that point there are a few ways toward a release from jail.
- Take a citation. The police give the defendant a notice to appear in court if it’s a relatively minor offense. The occasion for this to happen depends totally on where your offense took place. A few examples include petty theft, a first offense DUI case, or a traffic violation. They give you something that looks like a ticket ad you promise to appear.
- Post bail. For a more serious offense, he judge will set bail. Every county is different but every county has a public bail schedule that’s going to list every single crime there is and the amount of presumably reasonable bail that applies.

So at that point its up to the person or their friends and loved ones to either post the cash amount of bail or to use a bail bondsman. And how this plays out is going to be very different depending on which choice somebody makes and that’s probably better reserved for another video.

There is one other opportunity available after an arrest. If they do not post bail or take a citation for release, then they will go court. Generally, this happens in about 48 hours after an arrest. At this point, the judge may simply choose to release them. Next, then the attorneys can argue about whether bail should go up or down in amount.

If the person gets released they are out and they get to fight their case from out of custody. Otherwise they’re going to be in custody and the have to fight their case from inside.

Consult an Attorney

If you’re ever wearing handcuffs call 1-800 No Cuffs and remember if the police want to talk to you – you want to talk to us first. Call us an speak with an experienced criminal defense attorney who will fight to protect your rights.

If you are ever wearing Handcuffs call 1-800 No Cuffs.

Do I Get a Phone Call from Jail?

Posted by Darren Kavinoky on April 4, 2015

Yes, you do get a phone call from jail. Watch below to learn more from attorney Darren Kavinoky.

A Phone Call from Jail

Arrest procedures vary state by state and even county by county. The one thing that remains the same in each arrest is that those under arrest do not have a lot of amenities.

Consequently, a person under arrest has just one phone call from jail. This is normally to call a friend or relative let them know that they are in custody.

Sometimes law enforcement officers are little bit more flexible. There are examples here and there where people at the time of their arrest have access to their cell phone. Every once and a while, the arresting officer allows the person under arrest to a call. Generally speaking though, there really are not a lot of the creature comforts of regular life. When you’re under arrest, your life is not nearly as peachy.

An Attorney Will Fight for Your Rights

There are many chances for a person to find themselves under drunk-driving arrest. Perhaps your night went a little longer than you though and you drank more than you anticipated. The point is that a drunk-driving arrest can happen to almost anyone. A phone call from jail is best dialed to a California DUI attorney.

If you’re ever wearing handcuffs call 1800NoCuffs. Remember if the police want to talk to you – you want to talk to us first. Call a DUI attorney at The Kavinoky Law Firm. We employ only the best criminal defense attorneys in Los Angeles.

About Darren Kavinoky and The Kavinoky Law Firm.

Darren Kavinoky receives recognition over and over for his commitment to clients and for being a top California defense lawyer. The Los Angeles Magazine repeatedly regards him as a Super Lawyer , and the American Trial Lawyers Association highlighted him as one of the Top 100 Trial Lawyers in California. Additionally, he is the legal analyst and special correspondent for the syndicated television program The Insider, and is a sought-after guest on shows that include Entertainment Tonight, Dr. Phil, NBC’s Today Show, and various programs on CNN and the Headline News Channel. Follow Darren on Twitter @DarrenKavinoky or www.DarrenKavinoky.com.

Insurance Fraud and You – What You Need to Know in California

Posted by Darren Kavinoky on March 5, 2014

Insurance fraud occurs when someone knowingly falsifies information to obtain benefits that are not theirs to claim. It also occurs when one denies a benefit that to which someone else is due. This type of fraud includes:

Auto insurance,
property insurance,
homeowners insurance,
health insurance,
life insurance, and
any other type of insurance available in the state of California.

Circumstances of Fraud

Depending on the circumstances of the fraudulent act, penalties may go through the Department of Fraud Division. On the other hand, the Fraud Division may handle it as a criminal matter in a court of law. Authorities can charge insurance fraud cases as felonies, however, some are not. Some are actually are misdemeanors, depending on the circumstances surrounding the case.

The California insurance fraud law seeks to prevent and punish false insurance claims intended to generate payments to an individual by insurance companies. Some examples of this fraud include:

Submission of auto insurance claims from exaggerated or deliberate injuries,
Doctors charging for services that not originally included in an estimate, or
Faking an injury at work in order to be eligible for workers compensation.

Generally speaking, a prosecution for insurance fraud requires proof of the defendant’s intent to defraud.

Furthermore, if a prosecutor can prove the defendant knowingly make a false claim, or can show the defendant exaggerated the claim, then he has a case. The prosecutor will charge the defendant. If the attorney proves his case, the defendant is likely at risk of a guilty verdict.

Degrees of Fraud

There are varying degrees of fraud, beginning with small untruths, such as exaggeration on insurance claims. The more serious cases of insurance fraud include arson, destruction of property, theft, or faking an accident or injury in order to collect large insurance policies.

In order to protect the public from the stress and economic loss caused by insurance fraud, the State of California dedicates funding to the Fraud Division. This division actively investigates and arrests those who commit insurance fraud in the state of California. According to the Insurance Information Institute, fraudulent claims equal nearly $30 billion annually.

People who commit insurance fraud range from organized criminals who take large sums of money through insurance claims mills and professionals who inflate the cost of their services, to middle class men and women who exaggerate when filing an insurance claim in order to make extra money.

Penalties for Insurance Fraud

The punishment for this type of fraud depends on the specific type of fraud committed and the defendant’s activities specific to the case. If prosecuted as a misdemeanor in the state of California, insurance fraud carries a fine of up to $10,000, one year in county jail, or both.

In general, this type of fraud is a felony. Felony insurance fraud carries a fine of up to $50,000, or double the value of the defrauded amount, and up to five years in jail. If the felony is for worker’s compensation insurance fraud, the fine can be increased to $150,000 or double the value of the defrauded amount, depending on which penalty is greater.

For those convicted of insurance fraud with a felony conviction for fraud, the rules change. For this, a two-year enhancement may join up with their sentence. Additionally, California state court may require the defendant to pay restitution to the defrauded parties.

If you’ve been charged with insurance fraud in the state of California, an experienced criminal defense attorney can help.

Forgery – Felony or Misdemeanor Offenses Under California Law

Posted by Brianna Wilkins on March 5, 2014

Forgery, is a crime of misrepresentation. Though the crime itself is simple, the resulting loss to the victim is severe. In California, prosecutors aggressively litigate against these potential criminals. Although, all things considered, the fines and penalties may seem excessive considering the charge.

Many people think forgery is simply faking another person’s signature on a document, but the law is much more in-depth. This is a white collar crime involving the creation or alteration of a document in order to gain anything of value. It occurs when the suspect has the intent to commit fraud and signs another person’s name to gain a benefit.

Forgery Examples

While many think of a fake check as a classic example, this is not the only variety of this crime. As technology changes, so has the definition of the crime. Credit card theft in the state of California is often a crime of forgery, per the prosecution. This is a crime the receives a great deal of attention under state law.

Another consideration here is counterfeiting. This also falls under the category of a felony or misdemeanor act. Counterfeiting is the unlawful imitation or duplication of documents and other items with legal significance. A counterfeiting prosecution can result in either a misdemeanor or felony charge.

Though counterfeiting is often a felony, California state law allows a misdemeanor prosecution. This, however depends solely on the element receiving the counterfeiting. Specific items such as like trading cards and transit tickets are more likely to be misdemeanors.

Forgery Conviction

In order receive a conviction of forgery, three elements must be true:

Identification of a written instrument fo committing of forgery,
Proof the defendant materially altered an existing written instrument or falsely signed a written instrument, and
proving the defendant acted with intent to defraud.

The crime of forgery is not complete until the counterfeit item changes hands. For example, take the case of a stolen checkbook. Simply signing someone’s signature is not a felony. The act becomes more severe once the check exchanges hands to a bank teller or into an account. Up until that point, the only crime is the crime of attempted forgery. Though attempted forgery is not as severe a crime, it carries its own set of penalties and fines.

Examples of forgery include:

Writing yourself a fake prescription with a signature from a doctor,
Switching out a page in your parent’s will that leaves more inheritance to your name, or
Endorsing a check made out to someone else without their permission.

A Wobbler Crime

Forgery is a ‘wobbler’ crime in the state of California; meaning, it can be charged and punished as either a misdemeanor or felony, depending on the circumstances surrounding the crime. When deciding whether the charge is a misdemeanor or felony, the prosecutor will take a number of factors into consideration, including the suspect’s criminal record, the amount of the loss, and the age or status of the victim.

If the crime is a misdemeanor, the maximum penalty is a year in jail and a fine of up to $1,000. If the crime is a felony, the penalty can be extreme. Passing a forged check in excess of $400 can result in a

three year prison sentence and a $10,000 fine. Additionally, the felony can be increased based upon the amount of loss or prior record of the suspect, especially if the felony charge is a third strike.

Work with an Attorney to Defend Your Rights

There are several defenses to the crime of forgery. By hiring a criminal defense attorney in the state of California and proving permission, lack of passing the item, or lack of intent, you may prevent charges from being filed against you.

If you find yourself staring at a felony or misdemeanor conviction, don’t do it alone. Call the top criminal defense lawyers in Los Angeles. 1.800.NoCuffs is the number to remember and hope you never need. Call The Kavinoky Law Firm 24/7, 365 days a week. We don’t sleep – so you can.

Embezzlement

Posted by Brianna Wilkins on March 5, 2014

Embezzlement is a white collar crime. It most commonly occurs as employee theft or fraud. This crime is a type of property theft that occurs when someone violates a trusted money-keeping relationship. This person, who monitors someone else’s money or property, then steals all or part of the property for personal gain.

California state law distinguishes embezzlement from larceny or theft by requiring there be an element of trust. In order for an this conviction to stick, it must be property that the defendant legally possesses or has authority to access.

Embezzlement & Employment

Most embezzlement occurs in an employment situation, and can occur in the form of stealing money, credit card numbers, unlawfully accessing bank accounts, or taking product without permission. This type of crime comes in different forms. Examples include, a bank teller taking money from clients, or a family member taking money from a relative for whom they’re caring. Additionally, even managers of retail stores taking product home without permission are subject to criminal conviction.

In the state of California, embezzlement is punished according to the value of the property stolen. Property worth less than $950 (petty theft), and embezzlement of property worth more than $950 (grand theft) are two categories of embezzlement that carry different levels of punishment.

Petty Theft

Petty theft or embezzlement of property worth less than $950 is a misdemeanor. If convicted, the defendant faces the possibility of up to six months in jail and a fine of up to $1,000. If the property is worth less than $50, the prosecutor may choose to charge the offense as an infraction. Infractions carry a penalty of a fine up to $250, and are not available to defendants with any prior theft-related convictions.

Grand Theft

Those charged with embezzlement of more than $950 can see charges of grand theft. A conviction carries a jail sentence of up to one year, if charged with a misdemeanor. If found guilty of felony grand theft, state prison time of 1 months, two years or three years is possible. The embezzlement of firearms and autos always fall under the umbrella of grand theft, no matter their value.

Embezzlement of public money is a felony in California. Those convicted of embezzling public money are subject to increased fines and penalties, and usually must repay the stolen property or funds in addition to spending two to four years in prison. Additionally, those convicted of embezzling public funds will be permanently ineligible for any position in state or local government.

Embezzlement Prosecution Must Include These 3 Elements:

1. You have/had a relationship of trust with the victim,

2. Certain property care results from the relationship, and

3. You specifically intended to deprive the victim of that property by committing fraud and taking it as your own.

As with other types of crimes, white collar crimes are subject to additional enhancements. In the case of embezzlement, if the property is worth more than $65,000 you face an additional AND consecutive one-year prison sentence. This additional sentence can be as high as four years if the property is worth more than $3.2 million. Additionally, embezzlement from an elder or dependent person is an aggravating factor for sentencing purposes.

The defenses to embezzlement charges include claim of good faith, lack of criminal intent and false accusations/innocence. If you believe you were entitled to the property, didn’t specifically intend to deprive the owner of the property, or feel you have been falsely accused, an experienced criminal defense attorney in the state of California can help.

Kavinoky Law Firm

About Darren Kavinoky and The Kavinoky Law Firm.